Spanking is Not a Crime!

Parents throughout Canada can heave a sigh of relief. They will not be charged with a criminal offence if they choose to discipline their children with a spanking.

The Toronto-based Canadian Foundation for Children, Youth and the Law - with the considerable assistance of a $55,000 grant from the anti-life/family, tax-supported Court Challenges Program ($45,000 for the court costs and $10,000 for legal research and feasibility studies) - launched a constitutional challenge in the Ontario Superior Court of S.43 of the Criminal Code which permits parents, guardians and teachers to use reasonable physical force in the correction of children.

The case was argued on December 8, 1999 with a pro-family coalition group calling itself the Coalition for Family Autonomy, consisting of REAL Women of Canada, Focus on the Family, the Home School Legal Defence Association, and the Canadian Family Action Coalition, arguing for the retention of S.43 of the Criminal Code.

The anti-spanking Foundation argued before the court that S.43 violates the equality provision (S.15) of the Charter in that it discriminates against children on the basis of age and denies them equal benefits under the law because it sanctions their assault. It argued that children are autonomous beings who should be treated as adults and, therefore, if one cannot hit or assault an adult, then one should not be permitted to assault a child. The Children's Foundation court challenge was supported by the Ontario Association of Children's Aid Societies (CAS), which argued that S.43 of the Criminal Code contributes to an environment where violence against children is accepted. It further argued that "justification for assault under S.43 undermines its efforts to protect children." The CAS also argued that evidence discloses a strong link between corrective force and child abuse.

The Federal Attorney General of Canada

The Attorney General, for a change, remarkably put forward a competent defence of the law (S.43). It argued that properly interpreted, S.43 excuses parents or teachers from only a narrow range of mild to moderate corrective force that includes customary forms of physical punishment. The Attorney General also argued that almost all experts acknowledge that such conduct is not child abuse, and that any evidence linking physical punishment and negative outcomes for children is not scientifically reliable.

The Family Autonomy Coalition

In the arguments of our pro-family coalition, we pointed out that if S.43 were removed from the Criminal Code, then spanking would become a crime which would result in unwarranted governmental intrusion into the family unit. This, we argued, would benefit neither the public nor the children. We further argued that children are protected by S.43 by creating a sphere of activity permitting the use of reasonable force for correction. In short, we argued S.43 recognizes the importance of the family as the central influence in child-rearing.

In this regard, it was gratifying that Judge McCombs openly acknowledged in his judgment that our intervention provided "an important perspective concerning the critical importance of the family as the most important influence on our children."

The Canadian Teachers Federation also supported the Attorney General and our position by arguing that teachers must be free to restrain unruly or aggressive children when necessary in order to facilitate effective teaching and to maintain orderly classrooms. The result of removing S.43 from the Criminal Code, the Federation argued, would have a chilling and detrimental effect on the ability of teachers to perform their duties.

The Court's Decision
Mr. Justice McCombs, in his decision handed down on July 5, 2000, declared that S.43 was constitutional. He concluded that parents and teachers require a protected sphere of authority within which to fulfill their respective roles. He stated (paragraph 118):

… In my view, when the notion of reasonableness is properly construed, having regard to standards of community tolerance based on harm, S. 43 strikes the correct balance between the right of children to be protected from child abuse, and the protection of parents and teachers from unwarranted criminal prosecution.

He stated further at paragraph 120:

In my view, the strategy adopted by Parliament recognizes the complexity of dealing with the family: the difficulties in raising children; the state's responsibility to monitor or intervene; and the inherent limitations of the criminal law. In my view, this strategy more properly accords with the principles of fundamental justice than would outright criminalization of all conduct that would fall under the assault provisions without S.43.

In his judgement, Mr. Justice McCombs also applied a little common sense when he stated:

Without S. 43, other forms of restraint would be criminal, such as putting an unwilling child to bed, removing a reluctant child from the dinner table, removing a child from a classroom who refused to go, or placing an unwilling child in a car seat. All parties to this application agree that these are common and necessary applications of force.

The fact that such commonly accepted forms of parental discipline would become criminalized without S. 43 is a very significant consideration.

Judge McCombs did state, however, that Parliament should perhaps clarify S.43 by providing specific criteria to guide parents, teachers, and law enforcement officials. He also said that parliamentary clarification would help achieve the desirable objective of ensuring greater uniformity in judicial decisions involving allegations of assault on children.

What Next?

Immediately following the decision, the Foundation for Youth and Children announced it would appeal the decision to the Ontario Court of Appeal. Easy for it to say, when all its costs will be covered by the Canadian taxpayer by way of the Court Challenges Program. Our Family Autonomy Coalition, however, is not so fortunate, and we must cover any appeal costs from our own pockets. As a result, our pro-family organization will bear heavy expenses in carrying this case over the next few years. It is important that the Family Coalition continue to be involved, however.

Certainly, our position reflects the view of the vast majority of Canadians. In an Angus Reid Poll conducted in November 1999, it found that 83% of Canadians do not believe that spanking of children should be a criminal offence.

Canadians, therefore, are convinced that the reasonable spanking of children is a matter to be determined by parents, not the state.

Knowing full well that the federal government would not move on this issue because of its political implications, the Foundation for Children and Youth has resorted to the courts to achieve its objective of removing S.43 from the Criminal Code.

One wonders, however, whether their constitutional challenge of S.43 was motivated by the Foundation's concern for children, or by its wish to undermine the autonomy of parents and the family unit in Canadian society.

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